Westphal v. Amco Ins. Co.
| Decision Date | 26 July 1973 |
| Docket Number | No. 11164,11164 |
| Citation | 209 N.W.2d 555,87 S.D. 404 |
| Parties | Marvin WESTPHAL, Special Administrator of the Estate of Elsie Westphal, Deceased, et al., Plaintiffs and Appellants. v. AMCO INSURANCE COMPANY, a corporation, and Dairyland Insurance Company, a corporation, Defendant and Respondent |
| Court | South Dakota Supreme Court |
Dana, Golden, Moore & Rasmussen, and Richard W. Sabers, Sioux Falls, for plaintiffs and appellants.
Davenport, Evans, Hurwitz & Smith, and Ellsworth E. Evans, Sioux Falls, for defendant and respondent, Amco Ins. Co.
This is an action for declaratory relief declaring that defendant, Amco Insurance Company, under its uninsured motorist coverage, should pay damages in excess of the limits of defendant Dairyland Insurance Company's policy insuring motorist coverage with respect to the automobile in which plaintiffs were riding. The trial was held to the court and the fact stipulated. The lower court held that plaintiffs had no right of recovery from Amco under the terms and conditions of its liability policy. We reverse.
The controversy arises out of a motor vehicle collision occurring April 26, 1970 near Fort Pierre, South Dakota, involving a motor vehicle operated by Robert McInnis, an uninsured motorist, and a motor vehicle owned and operated by plaintiff, Marvin Westphal, in which the other three plaintiffs were occupants. McInnis was not injured. Marvin Westphal received injuries necessitating medical and hospital care; Elsie Westphal, his wife, sustained personal injuries causing her death on May 7, 1970. Leslie Hoyt and Evelyn Hoyt, his wife, sustained personal injuries necessitating hospital and medical attention. It is stipulated that Robert McInnis carelessly and negligently drove his motor vehicle into and against the Westphal motor vehicle with great force and violence; that plaintiffs' injuries were the proximate result of the negligence and carelessness of Robert McInnis; that the forms contained in the insurance policies of the defendants, Amco and Dairyland, including endorsements, were filed with and had the approval of the South Dakota Commissioner of Insurance prior to the date of the accident; and that the plaintiffs, Marvin Westphal and Leslie Hoyt are brothers-in-law and on April 26, 1970 the said Leslie and Evelyn Hoyt were in Fort Pierre visting Marvin and Elsie Westphal.
Plaintiff Westphal and his automobile were insured under a policy of automobile liability insurance issued by defendant Dairyland which included 'uninsured motorist coverage'. Dairyland deposited its uninsured-motorist coverage limits in the amount of $20,000 in court, and consequently is not a party to this appeal.
Amco had in force a policy of automobile liability insurance describing a 1963 Pontiac motor vehicle owned by plaintiff, Leslie Hoyt, the named insured in such policy. Its uninsured-motorist coverage has limits of liability of $10,000 each person and $20,000 each accident which are the limits of liability specified in Dairyland's policy.
The defendant Amco bases its defense of nonliability on Condition 7 of its policy relating to its uninsured-motorist coverage which reads in part:
'Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.'
The condition cited in Amco's policy is identical with the provision relating to 'other insurance' in Dairyland's policy.
It is also a part of the stipulation of facts, 'That the aggregate amount of the general and special damages, including the pecuniary loss sustained by the persons for whose benefit an action may be brought under the wrongful-death statute of the State of South Dakota, exceeds the sum of $20,000, which has heretofore been deposited herein with the Clerk of this Court by defendant Dairyland Insurance Company.' It is thus apparent that the actual damages suffered by plaintiffs have yet to be determined.
Respondent Amco presents the question involved in this appeal in the following succinct language: 'The controversy presented boils down to the question of whether Amco is free to contract as it did with respect to 'other insurance' applicable to its uninsured motorist coverage.'
When the policies involved were issued, SDCL 58--11--9, adopted in 1966, was in effect,* providing in part:
'Motor vehicle insurance--Uninsured motorist coverage.--No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in § 32--35--17, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage * * *.'
SDCL 32--35 is an act entitled 'FINANCIAL RESPONSIBILITY OF VEHICLE OWNERS AND OPERATORS.' Section 17 of that act in pertinent parts provides as follows:
'No policy * * * shall be effective * * * unless such policy * * * is subject, if the accident has resulted in bodily injury or death, to a limit * * * of not less than ten thousand dollars because of bodily injury to or death of one person in any one accident and, subject to said limit for one person, to a limit of not less than twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident * * *.'
The question posed by respondent was answered in the case of Van Tassel v. Horace Mann Insurance Company, 1973, Minn., 207 N.W.2d 348, by the Supreme Court of Minnesota, as follows:
The restrictive policy...
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